We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Ninth Circuit finds self-identification by class members does not satisfy ascertainability under Rule 23

The Ninth Circuit Court of Appeals recently affirmed a district court’s denial of class certification where a plaintiff failed to propose a plan to ascertain class members and therefore did not satisfy the manageability requirement of Rule 23(b)(3). Plaintiffs alleged that the defendants, a parking company and the City of Laguna Beach, California, had violated the Fair and Accurate Credit Transactions Act (“FACTA”) by improperly printing the expiration dates of credit cards on parking receipts. Plaintiffs sought to represent a class of purchasers who had not been victims of identity theft or suffered actual harm. The United States District Court for the Central District of California denied class certification, finding that plaintiffs did not satisfy the superiority requirement of Rule 23(b)(3) because the class was not ascertainable, individual claims and administrative proceedings were both effective alternatives to a class action lawsuit, and a class action would be unfair.

On appeal, the Ninth Circuit addressed only the ascertainability of the class. The court found several problems with identifying class members. Because the class only included those who had used personal credit cards to purchase parking, determining which individuals had used business cards and were therefore excluded from the class would be infeasible. Moreover, whether individuals had received receipts with expiration dates on them could not be efficiently determined, as there was no evidence that every parking machine had uniformly printed the dates over the four years at issue in the case and customers themselves would be unlikely to still possess the receipts. Individuals seeking to join the class would also need to show that they had not suffered identify theft in order to be included. Finally, and most critically, plaintiff had failed to propose a plan for determining who would be a member of the class, instead suggesting that potential class members could self-identify. The court noted that, while self-identification may be possible in certain settlement-only cases, it does not satisfy the manageability requirement of 23(b)(3)(d). Therefore, the court affirmed the denial of class certification.